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Challenges to mandatory and prolonged detention work their way through the courts.

With more immigrants now targeted for deportation, the use of immigration detention is increasing, while the backlog of pending cases in immigration courts has reached an all-time high.Alan Gomez, “Trump Plans Massive Increase in Federal Immigration Jails,” USA Today, October 17, 2017; and TRAC Immigration, “Immigration Court Filings Take Nose Dive, While Court Backlog Increases,” October 30, 2017. Many detained immigrants are eligible to be released while their immigration cases are pending by paying a bond of at least $1,500.Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015); and Michael Kaufman and Michael Tan, Bond Hearings for Immigrants Subject to Prolonged Immigration Detention in the Ninth Circuit (Southern California: ACLU, 2015). But many others are subject to “mandatory detention”—required by law to remain in custody until their cases have concluded.Kaufman and Tan, Bond Hearings for Immigrants (2015), at 5.

Recent litigation in the Second Circuit and the Ninth Circuit has given these mandatory detainees the right to challenge their continued detention at regular intervals, and the U.S. Supreme Court heard arguments in October about the constitutionality of mandatory detention.Jennings v. Rodriguez, 15-1204 (2017). Also see Lora v. Shanahan, 14-2343-PR (2d. Cir. 2015), cert. denied, No. 14-2343-PR (October 28, 2015); and Juan Caballero and Eva Yung, Understanding Lora v. Shanahan and the Implementation of Bond Hearings for Immigrants in Prolonged Detention (New York: NYU Law Immigration Rights Clinic, 2015). A decision is expected before July 2018. Meanwhile, the Ninth Circuit upheld a lower court’s order requiring the government to consider an immigrant’s actual ability to pay a bond for his or her release pending proceedings, as well as whether alternative conditions of release such as an ankle monitor would be sufficient to ensure appearance at hearings.Hernandez v. Sessions, 872 F. 3d 976 (9th Cir. 2017).

Similar advancements were made for unaccompanied children, who previously had no recourse if the government chose not to release them. In July, the Ninth Circuit ruled that unaccompanied children in the custody of the Office of Refugee Resettlement have the right to request a bond hearing before an immigration judge.Flores v. Sessions, No. 17-55208 (9th Cir. 2017); and Miriam Jordan, “Detained Immigrant Children are Entitled to Hearings, Court Rules,” New York Times, July 5, 2017. Though the court did not give immigration judges authority to order a child released on bond, it did give them the authority to rule on whether a child is a danger to the community or a flight risk.Flores, at 31. In November, a U.S. district court in California issued a preliminary injunction that granted immigration judges the authority to release a specific subset of unaccompanied children: any unaccompanied child who was released by the government to a sponsor and then re-detained by ICE has the right to a hearing at which the government is required to show changed circumstances in order to keep the child in custody; if no changed circumstances exist, the child will be released back to the original sponsor.Saravia v. Sessions, Case No. 17-cv-03615-VC (N.D. Cal. November 20, 2017) (order granting preliminary injunction, granting motion for provisional class certification, granting in part and denying in part federal defendants’ motion to dismiss, and granting non-federal defendants’ motions to dismiss).